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Enforceability of NHRC Awards/Decisions

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AN OUTLINE ON THE ENFORCEABILITY OF THE AWARDS (DECISIONS/ DETERMINATIONS) BY THE NATIONAL HUMAN RIGHTS COMMISSION

A Paper Presentation on 29th September 2021 at the
National Human Rights Institute
By
Frank Tietie, Esq.
Executive Director,
Citizens Advocacy for Social & Economic Rights (CASER)
&
Principal Partner, Forthright Chambers
(Human Rights & Development Law Consultants)

Introduction
I thank the Director of the National Human Rights Institute, Ifeoma Nwakama for the choice of this paper discussion which reflects her many years of experience in her work with the National Human Rights Commission (NHRC) involving the promotion, observation, and enforcement of internationally accepted human rights standards in Nigeria with the attendant problems.

I also extend much appreciation to the Executive Secretary of the National Human Rights Commission (NHRC), Tony Ojukwu who has against many odds, striven to maintain high human rights standards in the face of mounting human rights violations and has not hesitated to call to order both renegades and law enforcement agents who disregard the fundamental human rights of Nigerian citizens.

President Muhammadu Buhari has done well by finally appointing a Council for the NHRC and by his action, the NHRC is now complete and empowered to discharge its very important functions of promoting and enforcing human rights standards for the benefit of Nigerians.

One of the most significant amendments to the National Human Rights Commission Act of 1995 is to enhance the functions and powers of the National Human Rights Commission (the Commission) to the extent of having its decisions- Award/Recommendation enforceable by the High Court.

Awards by the Commission have been challenged in court, in the past without clear-cut judicial decisions on the enforceability of its decisions thereby necessitating the interrogation of the supposed but not so novel provision that requires the Commission to register its Awards in the High Court for the purpose of enforcing such.

Power of the Commission to Make Award (Decisions/Determinations)

Section 6 (1) (e) of the National Human Rights Commission (Amendment) Act, 2010 provides as follows:

The Commission shall have power to –

Make determination as to the damages or compensation payable in relation to any violation of human rights where it deems this necessary in the circumstances of the case.

The above provision is revolutionary as it gives to the Commission powers that are tantamount to the judicial functions that are exercisable by the courts. In that regard, the Commission is expected to receive complaints of human rights violations from the public and adjudicate on them to the point of making awards to compensations payable to victims of human rights abuse

Legal Status of the NHRC in Exercising Judicial Functions

Section 6 of the 1999 Constitution of the Federal Republic of Nigeria (As Amended) expressly vests judicial powers on the following courts:

(a) the Supreme Court of Nigeria;

(b) the Court of Appeal;

(c) the Federal High Court;

(cc) the National Industrial Court

(d) the High Court of the Federal Capital Territory, Abuja;

(e) a High Court of a State

(f) the Sharia Court of Appeal of the Federal Capital Territory, Abuja;

(g) a Sharia Court of Appeal of a State;

(h) the Customary Court of Appeal of the Federal Capital Territory, Abuja;

(i) a Customary Court of Appeal of a State;

(j) such other courts as may be authorised by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws; and

(k) such other court as may be authorised by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws.

These are generally referred to as superior courts of record. Note that the NHRC does not fall into any of the categories of courts that exercise judicial functions.

Exercising the Powers & Functions of the NHRC.

The functions and powers of the National Human Rights Commission (NHRC) as respectively contained in Sections 5 and 6 of its Establishment and Amendment Acts are inherently exercisable and enforceable, unconditionally without recourse to any other authority and persons within and outside the Federal Republic of Nigeria.

This is based on the provision of Section 6 (3) of the National Human Rights Commission (Amendment) Act, 2010 which further provides as follows that:

In exercising its functions and powers under this Act, the Commission shall not be subject to the direction or control of any other authority or person.

Does Section 22 of the NHRC Act Place Restrictions on the Enforcement Powers of the NHRC ?

It does appear that Section 22 (1) National Human Rights Commission (Amendment) Act, 2010 places a condition or restriction on the exercise of the powers of the Commission. But the contrary is the case when the section is examined more closely as it provides as follows:

An award or recommendation by the Commission shall be recognized as binding and subject to this section, and this Act, shall, upon application in writing to the court, be enforced by the court

The above provision of the law does not place any condition or restriction on the Commission in the exercise of its powers to make determinations as to compensations payable to victims of human rights violations but on the other hand, makes a distinction between the powers of the Commission and the role of the courts in the enforcement of determinations that have been independently made by the Commission.

Whereas the independence of the Commission is guaranteed together with its powers to make determinations on Awards/Recommendations on compensation that is payable, the responsibility of enforcing the determinations that have been made by the Commission is placed specifically on the Federal High Court, High Court of the Federal Capital Territory and all State High Courts in Nigeria.

The responsibility of NHRC (the Commission) after it has made its determination as to compensation that is payable to a victim in any case arising from a Complaint, is for it to apply to the Court in writing to register its determination/award/decision for the purpose of enforceability as a judgment of the Court.

It is therefore clearly not the responsibility of the Commission to enforce its own awards, but that responsibility is placed on the courts. The Commission is expected to concern itself only which the exercise of its functions and powers which include making determinations as to compensation payable to victims of human rights violation by way of awards that it makes. And applying to the Court in writing for the enforcement of its decisions- Awards/ Recommendations.

The processes involved in reaching or making an award by the Commission may be challenged in Court if they run foul of the principles of fair hearing as contained in the constitution and in judicial decisions, however when an award has been made by the Commission and subsequently registered with the High Court by written application, it becomes mandatory for the courts to enforce the decisions of the Commission. Thus, the distinction is further made between the process of reaching the award, the application to register the Award, and the responsibility for enforcing the award, which separately belongs to two different authorities- the Commission and the High Courts.

Consideration of Statutory Precedents Impari Materia with the Import of Section 22 of the NHRC Act – Enforceability of its Decisions /Awards /Determinations. References to the Arbitration and Conciliation Act, Cap 18, LFN, 2004

In Recognition and Enforcement of Awards Section 51 of Arbitration and Conciliation Act, provides as follows:

51 (1) An arbitral award shall, irrespective of the country in which it is made, be recognised as binding and subject to this section 32 of this Act, shall, upon application in writing to the court, be enforced by the court.

(2) The party relying on an award or applying for its enforcement shall supply

(a) the duly authenticated original award or a duly certified copy thereof;

(b) the original arbitration agreement or a duly certified copy thereof; and

(c) where the award or arbitration agreement is not made in the English language, a duly certified translation thereof into the English language.

Therefore, Can an Award made by the NHRC be Set aside by a High Court?

Ordinarily, an award that is enforceable by the High Court cannot be set aside by the same Court. Where the conditions for its enforceability have been fulfilled. By the NHRC Act, the only condition for an award made by the Commission to be enforced by the High Court is that it should be registered with the Court by way of application in writing. It may not be that simplistic in practice considering challenges that were raised in the past by security agencies against the decision of the NHRC in Council.
Again, there exist a long line of remedies available to individuals and government by way of application to Court for Judicial review in the forms of:

i. Declaration
ii. Mandamus
iii. Certiorari
iv. Prohibition
v. Injunctions

Before an Award or Recommendation is made by the Commission, its processes in arriving at its decision can indeed be challenged in the High Court under the process of judicial review since it is not constitutionally recognized as a superior court of record by the Constitution. But when an Award/Recommendation has been registered in the High Court by the Commission, the court can no longer review the Award/Record. An aggrieved party at that stage can only resort to appeal against the Award / Recommendation at the Court of Appeal by activating the appeal process both at the lower and appellate courts.

Consideration of Statutory Precedents Impari Materia with the Import of Section 22 of the NHRC Act – Vitiating Elements. References to the Arbitration and Conciliation Act.

Section 52 of the Arbitration and Conciliation Act, Cap 18, LFN, 2004 further provides as follows:

(1) Any of the parties to an arbitration agreement may request the court to refuse recognition or enforcement of the award.

(2) The court where recognition or enforcement of an award is sought or where an application for refusal of recognition or enforcement thereof is brought may, irrespective of the country in which the award is made, refuse to recognise or enforce any award-

(a) if the party against whom it is invoked furnishes the court proof-

(i)that a party to the arbitration agreement was under some incapacity, or

(ii) that the arbitration agreement is not valid under the law which the parties have indicated should be applied, or failing such indication, that the arbitration agreement is not valid under the law of the country where the award was made, or

(iii) that he was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise not able to present his case, or

(iv)that the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or

(i)that the award contains decisions on matters which are beyond the scope of submission to arbitration, so however that if the decision on matters submitted to arbitration can be separated from those not submitted, only that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced, or

(ii)that the composition of the arbitral tribunal, or the arbitral procedure, was not in accordance with the agreement of the parties, or

(iii)where there is no agreement within the parties under sub-paragraph, that the composition of the arbitral tribunal, or the arbitral procedure, was not in accordance with the law of the country where the arbitration took place, or

(iv) that the award has not yet become binding on the parties or has been set aside or suspended by a court in which, or under the law of which, the award was made; or (b) if the court finds-

(i)that the subject matter of the dispute is not capable of settlement by arbitration under the laws of Nigeria, or

(ii) that the recognition or enforcement of the award is against public policy of Nigeria.

(3) Where an application for the recognition of an award has been made to a court referred to in subsection (2)(a)(viii) of this section, the court before which the recognition or enforcement is sought may if it considers it proper, postpone its decision and may on the application of the party claiming recognition or enforcement of the award, order the other party to provide appropriate security.

The courts have given judicial recognition to those vitiating elements that have been considered above which are mainly, often founded on breaches of the principles of fair hearing. See the case of SUNDERSONS LTD & ANOR V. CRUISER SHIPPING PTE LTD & ANOR (2014) LPELR-22561(CA)

Interestingly, with much relief, the Standing Orders and Rules of Procedure (STORP) of the National Human Rights Commission of Nigeria, have sufficiently addressed the possibilities of the breaches to fair hearing and set standards to guard against the violations of same. See Generally, Chapter XVII of STORP.

Principles & Practice Adopted by the Courts in the Nature of Enforceability of Awards by Quasi-Judicial Bodies like the NHRC

Should the registration of the Award by Written Application to the Court for the enforcement be made secretly (ex-parte) i.e without notice to the party(ies) affected?

A recent decision of the Court of Appeal in ALLIED ENERGY LTD & ANOR V. NIGERIAN AGIP EXPLORATION LTD (2018) LPELR-45302(CA), becomes instructive even in the absence of any statutory provision directing that affected parties be put on notice.
In the ratio of the above decision, which is hereto annexed to this presentation, the court held as follows:

“….. In so far as the application for leave to enforce the Arbitral Award was not served on the Appellants before same was heard and determined, the Appellants’ right to fair hearing would be taken as having been breached, thereby rendering the entire proceedings including the order made by the Lower Court, a complete nullity, and therefore liable to be set aside .”
Per ABUBAKAR ,J.C.A (Pp. 46-58 paras. E)

Whereas there are no statutory requirements for the Respondent to be put on notice when an award of NHRC is to be registered, it would amount to a violation of the constitutional provisions of fair hearing which would render the enforcement order of the High Court regarding the NHRC award to be set aside. This is very important and in addition state that the application for the registration of the award can be made by either the NHRC or the benefitting party from the award.

Conclusion
There exist a lot of gaps in the NHRC Act(s) as to the procedure for the enforcement of awards by the NHRC.

Understandably so, the NHRC Act places the responsibility of enforcing the decisions of the NHRC on the Federal and State High Courts.

There is no provision in the Act that empowers the Court to review the decisions- Award/Recommendation of the Commission. Thus, when an Award made by the Commission has been successfully registered, it must be enforced by the Court as if such an Award is a judgment of the Court itself. That will presume the application of the Judgement Enforcement Rules made pursuant to the Sheriffs and Civil Process Act.

Recommendation– Moves should begin in earnest, if they haven’t already for the NHRC-in Council to approach and liaise with Heads of the Court, particularly, the Chief Judge of the Federal High Court as a matter of urgency for the issuance of practice directions specific to the enforcement of NHRC Decisions.

Thank you.

The Discussion continues….

Frank Tietie

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